The Sixth Amendment promises the right to confront an adverse witness. However, when the witness is on the other end of a 911 call, this can lead to tricky constitutional issues. The Massachusetts Supreme Judicial Court will soon decide a confrontation clause issue in Commonwealth v. Rand. Hopefully, the SJC will correct an error made by the lower court regarding Rand’s right to confrontation as defendant’s in domestic assault and battery cases have seen their right to confront their accuser diminished by recent Court decisions.

What happened in the Rand case?

This case arises out of a domestic dispute. Defendant Rand and his former girlfriend Otilia Cradock are parents to a young daughter. The couple was on and off, but Rand stayed involved in his daughter’s life, so he was often at Cradock’s home. One night, Cradock and her sister spent the night drinking wine at her apartment. She started to be rude to her sister. Her sister left the apartment. At around 1 in the morning, Cradock reported to police that her boyfriend had assaulted her. She said that he had strangled her until she passed out and urinated. When the 911 operator asked if the boyfriend was still at the home, she responded that he had left.

There are conflicting accounts as to the severity of which Cradock’s injuries. She went to the hospital after the incident but was discharged in a few short hours. The doctors performed tests on her but did not find anything consistent with strangulation, especially not strangulation so severe to cause fainting. She was diagnosed with a concussion almost entirely based on her own oral account of the incident.

What is Hearsay and how does it impact a Domestic Assault and Battery Charge? 

Hearsay is an out-of-court statement used to prove the truth of the matter asserted. There are many exceptions to the hearsay rule, including the “excited utterance” exception, which applies when the declarant is still under the stress of the event. 911 calls can create a grey area because although they can arguably be considered an excited utterance, the call goes from an excited utterance to a testimonial statement as soon as the purpose of the conversation shifts from resolving an ongoing emergency to information that is relevant to a criminal prosecution. Once a conversation is in testimonial territory, the confrontation clause applies. Here, the 911 call was testimonial because the statements that the victim made during the call were not made during an ongoing emergency and were testimonial. Conversations between operators and civilians during 911 calls are the equivalent of a police interrogation for the purposes of the confrontation clause. These conversations can quickly shift from non-testimonial to testimonial in a single call.

The statements were not made in the midst of an ongoing emergency because the victim  clearly communicated that the assault had ended. Rand had left the scene and posed no immediate danger to her. There was nothing in the call to suggest Rand posed a threat to responding officers or the public at large. Cradock was not suffering from life-threatening injuries.

These statements were not harmless because they were the most critical evidence in the Commonwealth’s case. They provided the only evidence of what occurred during the alleged assault and the identity of who committed it. These statements were the foundation of the prosecution’s case against Rand.

Hopefully, the Supreme Judicial Court will reverse the lower court’s error. The lower court’s decision goes against commonly accepted confrontation clause jurisprudence.

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